FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 FEBRUARY 20, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-16596

Non-Argument Calendar

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D. C. Docket No. 01-00534-CR-TWT-1

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

ARTURO PLIEGO-DUARTE, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(February 20, 2008)

Before TJOFLAT, BLACK and HULL, Circuit Judges.

PER CURIAM:

Arturo Pliego-Duarte appeals from his conviction and 360-month sentence

imposed after he pled guilty to one count of conspiring to possess with intent to
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distribute at least 5 kilograms of cocaine and 500 grams of methamphetamine, in

violation of 21 U.S.C. §§ 841(b)(1)(A)(ii), (b)(1)(A)(viii), 846 and 851. After

review, we affirm.

I. BACKGROUND

A. Plea Agreement

Pliego-Duarte, along with several coconspirators, was charged in a multicount indictment. In April 2002, Pliego-Duarte pled guilty pursuant to a

negotiated plea agreement. The plea agreement contained the following appeal

waiver:

LIMITED WAIVER OF APPEAL: To the maximum extent

permitted by federal law, the defendant voluntarily and expressly

waives the right to appeal his sentence and the right to collaterally

attack his sentence in any post-conviction proceeding on any ground,

except that the defendant may file a direct appeal of an upward

departure from the otherwise applicable sentencing guideline range. 

The defendant understands that this Plea Agreement does not limit the

Government’s right to appeal, but if the Government appeals the

sentence imposed, the defendant may also file a direct appeal of

sentence.

During the plea hearing, among other things, the district court asked PliegoDuarte whether he understood that “under some circumstances,” Pliego-Duarte or

the government may “have the right to appeal any sentence” imposed. PliegoDuarte responded that he understood. The district court further asked PliegoDuarte whether he understood that as part of his plea agreement, he was giving up
3

his right to appeal his sentence “unless there is an upward departure from the

guidelines or an appeal by the government.” Pliego-Duarte responded that he

understood. The district court ultimately concluded that Pliego-Duarte understood

the charges against him and the consequences of his guilty plea and that PliegoDuarte had knowingly, voluntarily and competently entered his guilty plea.

At sentencing in June 2002, the district court calculated a base offense level

of 38 based on drug quantity and imposed a two-level firearm enhancement, a fourlevel leadership role enhancement and a two-level reduction for acceptance of

responsibility, for a total offense level of 42. With a criminal history category of

II, the district court found a guidelines range of 360 months’ to life imprisonment. 

Because the sentencing occurred prior to the Supreme Court’s decision in United

States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), the district court applied the

sentencing guidelines as mandatory and imposed a 360-month sentence. Despite

Pliego-Duarte’s request, defense counsel did not file an appeal.

B. Section 2255 Motion 

In 2003, Pliego-Duarte filed a pro se 28 U.S.C. § 2255 motion, arguing, inter

alia, that his defense counsel was constitutionally ineffective for failing to file a

direct appeal as instructed. After an evidentiary hearing, the district court denied

Pliego-Duarte’s § 2255 motion in August 2005. With respect to Pliego-Duarte’s
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ineffective assistance claim, the district court concluded that because PliegoDuarte’s plea agreement contained a sentence appeal waiver, Pliego-Duarte

suffered no prejudice from counsel’s failure to file an appeal. 

On appeal, this Court granted a certificate of appealability on the sole issue

of “[w]hether the district court properly denied appellant’s claim for ineffective

assistance of counsel based on counsel’s failure to file a direct appeal?” The Court

concluded that, because Pliego-Duarte had waived most, but not all, of his

appellate rights, prejudice was presumed, and Pliego-Duarte was entitled to an outof-time direct appeal. The Court vacated the district court’s § 2255 order and

remanded for further proceedings consistent with its opinion. See Pliego-Duarte v.

United States, 199 F. App’x 855 (11th Cir. 2006).

On remand, the district court vacated its original order of judgment of

conviction and 360-month sentence and reentered it with a new docket entry

pursuant to United States v. Phillips, 225 F.3d 1198, 1201 (11th Cir. 2000). 

Pliego-Duarte then timely filed this now direct appeal of his conviction and

sentence.

II. DISCUSSION

A. Validity of Guilty Plea

Pliego-Duarte argues that his guilty plea was invalid because he did not
Because Pliego-Duarte did not object to the plea proceedings in the district court, our 1

review is limited to plain error in order to avoid manifest injustice. See United States v.

Quinones, 97 F.3d 473, 475 (11th Cir. 1996). The factual statement of Pliego-Duarte’s appeal

brief mentions briefly that his counsel was ineffective in negotiating his plea, but Pliego-Duarte

fails to develop this argument. In any event, to the extent Pliego-Duarte attempts to raise an

ineffective assistance claim, we decline to address it on direct appeal. Massaro v. United States,

538 U.S. 500, 504-05, 123 S. Ct. 1690, 1694 (2003). 

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waive his Sixth Amendment right to have the facts supporting his firearm and

leadership-role sentencing enhancements found by a jury beyond a reasonable

doubt. This is essentially a Booker argument. 1

Booker, however, did not render Pliego-Duarte’s guilty plea involuntary and

provides no basis for vacating his conviction. See Brady v. United States, 397 U.S.

742, 756-57, 90 S. Ct. 1463, 1473-74 (1970) (concluding that a guilty plea is not

rendered involuntary by a subsequent change in the law as it relates to the

defendant’s sentence). A Booker error implicates sentencing rights, not the

establishment of guilt or compliance with Federal Rule of Criminal Procedure 11. 

When a reversible Booker error is established, this Court vacates the defendant’s

sentence and remands for resentencing in accordance with the applicable law. We

do not remand to permit the defendant to withdraw his guilty plea. The district

court did not commit plain error when it concluded that Pliego-Duarte’s guilty plea

was knowing and voluntary.

B. Sentencing Appeal Waiver

In this direct appeal, Pliego-Duarte raises several sentencing issues,
Pliego-Duarte’s sentence appeal waiver permits him to appeal only if there is an upward

2

departure under the guidelines or if the government appeals the sentence. Pliego-Duarte’s

appellate claims do not fall under either of these exceptions to the sentence appeal waiver.

We review the voluntariness of an appeal waiver de novo. United States v. Bushert, 997 3

F.2d 1343, 1352 (11th Cir. 1993).

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including the district court’s refusal to award Pliego-Duarte an additional

acceptance-of-responsibility point under the guidelines and failure to resentence

him in accordance with Booker. However, if enforceable, Pliego-Duarte’s

sentence appeal waiver precludes review of these claims. Pliego-Duarte argues 2

that his appeal waiver is invalid because the district court failed to adequately

explain his appeal rights or the appeal waiver during his plea colloquy.3

A sentence appeal waiver must be knowing and voluntary and will be

enforced if the government shows either that: (1) the district court specifically

questioned the defendant about the waiver; or (2) the record makes clear that the

defendant otherwise understood the full significance of the waiver. United States

v. Bushert, 997 F.2d, 1343, 1350-51 (11th Cir. 1993). A waiver of the right to

appeal can cover “difficult or debatable legal issues or even blatant error,”

including Booker issues. United States v. Grinard-Henry, 399 F.3d 1294, 1296

(11th Cir. 2005).

Pliego-Duarte claims that his counsel during the plea negotiations did not

explain the appeal waiver to him before he signed the plea agreement. Pliego-
Pliego-Duarte’s argument that his sentence appeal waiver is unenforceable because it is

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not supported by adequate consideration is also without merit. In exchange for Pliego-Duarte’s

guilty plea, the government agreed to dismiss the thirteen remaining counts in the indictment and

to recommend that Pliego-Duarte’s offense level be reduced for acceptance of responsibility.

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Duarte also points out that his sentencing counsel testified during the § 2255

hearing that, at the sentencing hearing, Pliego-Duarte appeared not to understand

that he had waived his right to appeal his sentence. However, the district court

specifically questioned Pliego-Duarte about the sentence appeal waiver during the

plea colloquy, and Pliego-Duarte stated that he understood the appeal waiver. We

apply a strong presumption that Pliego-Duarte’s statement under oath that he

understood the sentence appeal waiver in his plea agreement was true, and PliegoDuarte has failed to meet the heavy burden to show otherwise. See United States

v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994); United States v. Rogers, 848 F.2d

166, 168 (11th Cir. 1988). Moreover, Pliego-Duarte’s claim that he did not

question the district court regarding the appeal waiver out of fear of a life sentence

or due to advice of counsel is belied by the fact that Pliego-Duarte did not hesitate

to object to the government’s factual proffer during the plea. 

Because Pliego-Duarte knowingly and voluntarily entered into his sentence

appeal waiver, the sentence appeal waiver is enforceable. Thus, we do not address 4

the sentencing issues raised by Pliego-Duarte.

AFFIRMED.